NOT PROTECTIVELY MARKED. Date 5 February 2018 SPA HQ, 1 Pacific Quay, Glasgow

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1 Meeting SPA Policing Date 5 February 2018 Location SPA HQ, 1 Pacific Quay, Glasgow Title of Paper Implementation of the Criminal Justice (Scotland) Act 2016 Item Number 6 Presented By Chief Inspector Michael Duddy Recommendation to Members For Noting Appendix Attached NO PURPOSE The purpose of this paper is to update the Committee in relation to the work, both undertaken and ongoing, relative to the forthcoming implementation of the Criminal Justice (Scotland) Act 2016 (the Act). The paper is submitted for Noting 1

2 1. BACKGROUND 1.1 This paper provides the Members with a further update regarding Police Scotland s preparation for the implementation of the Criminal Justice (Scotland) Act FURTHER DETAIL ON THE REPORT TOPIC 2.1 The Act will be implemented by the Police Service of Scotland at 00:00:01 hrs on Thursday 25 January While Police Scotland is prepared for the implementation of the Act the attention of the Board is drawn to the following matters: 2.2 National Custody System Phase 2 of the National Custody System (NCS), which has been updated so as to be fully Act compliant, is undergoing final testing and enhancement and will be ready to be introduced during the evening of 24 January Criminal Justice Services Division (CJSD) has a full Transitional Plan and Operational Order in place to support the transition on 24/25 January The current version of NCS will be closed down at 20:00 hrs on 24 January and all custody suites will operate via existing, proven, hard copy business continuity arrangements. NCS Phase 2 will thereafter be rolled out to every custody suite in Scotland and will be utilised from 00:00:01 hrs on Thursday 25 January. 2.3 Support The CJSD Transition Plan includes additional supervisory support at main custody suites between 1900 hrs on Wednesday 24 January 2018 and 1900 hrs on Monday 29 January In addition, each territorial policing area will have a nominated Cluster Inspector on duty on a 24 hr basis between 1900 hrs on Wednesday 24 January 2018 and 1600 hrs on Monday 29 January The Act Implementation Team will provide the Force specific policy support on a 24 hr basis from 08:00 hrs on Wednesday 24 January 2018 until 22:00 hrs on Monday 29 January Thereafter, they 2

3 will be available from 08:00 hrs to 22:00 hrs until Friday 2 February 2018; with a Team member on call on a 24 hr basis In addition CJSD has recruited 7 Custody Review Inspectors (CRIs) who will review all cases where the suspect is still un-charged after a period of 6 hrs from arrest, in addition they will also consider the granting of an extension to the 12 hours available when a suspect has been arrested. This service will be provided across the force on a 24 hr basis from 25 January Training All Constables, Sergeants and Inspectors within the force received a full days training on the Act in 2016 or Following the implementation delay from July 2017 to January 2018, a further Act refresher course was developed and is hosted on the Moodle learning platform. This training is available to all persons but is mandatory for all Constables, Sergeants and Inspectors. As of 8 January 2018, 75% of these officers have completed this training, and Divisions are being supported to ensure all their officers have completed this training During 2016 and 2017 all custody trained officers completed an additional one days training course on the Act. Again as a result of the delay, this training was revised and refreshed and between September and December over 700 custody decision makers received a further one day face to face training from the Implementation Team. Final courses are being delivered in January to capture persons unable to attend the previous courses and around 860 custody supervisors are scheduled to receive this training prior to implementation During January the newly appointed CRIs will undergo bespoke training and development to allow them to deliver this key role. 2.5 Guidance and Communications Act SOPS and guidance have been compiled and are undergoing final checks and are on schedule to be ready for implementation. Additional guidance is available to officers via aide memoires and Police Scotland notebooks, which have been revised to ensure they include step by step guidance and direction to officers in terms of how to conduct an arrest under Section 1 of the Act, what considerations they must have prior to an arrest and the 3

4 information they must record and the rights they must provide to an arrested person Additionally, a number of short, themed bespoke PowerPoint presentations have been issued across the force to be utilised in the briefing of all officers. These will continue during January, including clear guidance regarding transition arrangements to ensure appropriate powers and procedures are deployed during 24 and 25 January Posters have been issued across the Force as part of the Communications strategy, highlighting the importance of training and of the implementation date. A Screensaver message regarding Act implementation has also been placed on each PC across the Police Scotland estate. An Act Intranet page containing all issued briefs, guidance and products is available and is a single point of reference and sign posting for all officers across Scotland. The Act Team has personally visited each Division to support and advice on local implementation issues, to brief SMTs and also where possible to brief operational officers. 2.6 Outstanding Issues Police Scotland continues to work with Scottish Government and partners to support implementation. However, the following issues remain outstanding at this time (8 January 2018). Children, vulnerable persons and 16 and 17 year olds who have a qualified right of waiver with regards to solicitor presence at interview. This issue is on the Scottish Government s Implementation Group risk register. Whilst the Act is clear that a solicitor should be present for these people, the rules of solicitor professional practice, as clarified by the Law Society of Scotland, do not allow a solicitor to represent any person unless the person instructs them to do so i.e. they can only act on the instruction from the client and not from the police. Work has been undertaken to ensure arrested persons are aware of their rights around solicitor presence and the position will be monitored post implementation to assess if there is any impact on investigations. Where a person is arrested as a suspect for a second time for the same offence but the solicitor they utilised during their first arrest (and who may have been present at an interview) is unable to 4

5 attend, or be contacted, for interview on the second occasion. The first solicitor is clearly the person best placed to advise their client, but a practical and ethical solution in response to any inability for them to advise the client during a second arrest period is subject of consideration, particularly the ability for the Scottish Legal Aid Board to provide a duty solicitor in these circumstances. Partnership consideration will continue pre and post implementation of the Act to ensure fairness to suspects and victims. Work is ongoing with COPFS regarding their recently issued consultation on the Codes of Practice (required by the Act to be in place within 12 months of implementation) regarding Identification Parades and Questioning. The decision by some members of the Bar Association, across different parts of the country, to withdraw from the police solicitor duty plan. 3. FINANCIAL IMPLICATIONS 3.1 There are financial implications in this report. There are financial implications as a result of this implementation process. These are not solely confined to staff costs involved in the implementation team or development and build of the National Custody System. There are costs associated with training and the training materials, together with aide memoire, new notebooks, forms and translation costs. A total of 100K has been secured from Scottish Government in relation to these anticipated budgetary 'cost pressures'. In addition, there will need to be new posts created in order to deal with some of the facets of the legislation, which place extra responsibilities on the Police Service. These posts need to be fulfilled by an officer of Inspector rank. This requires an uplift of 7 Inspectors, which with on-costs amounts to a total of 402,633. There will be associated additional administrative costs in relation to recording various details, borne out of the new investigative procedures. These costs are difficult to quantify in full with the expense having to be absorbed from within the Force budget. 5

6 4. PERSONNEL IMPLICATIONS 4.1 There are personnel implications associated with this paper. The personnel implications are linked to the creation of new posts for the Custody Review Inspectors, required due to the imposition of custodial reviews within the legislative framework. This role will be available on a 24/7 basis. Subsequent to the new custodial procedures, there will also be an additional administrative demand so that records and systems are accurate and reflect the current situation. 5. LEGAL IMPLICATIONS 5.1 There are further legal implications in this paper to those listed above. There are legal implications in relation to this in that the force needs to be able to meet and comply with its ensuing legislative responsibilities as soon as the legislation is enacted. Similarly, there is a strong view that decisions, conditions and processes applied by the force are likely to be challenged, in order to test the use of the legislation in the initial period of application. 6. REPUTATIONAL IMPLICATIONS 6.1 There are reputational implications associated with this paper. It is considered highly unlikely that there will not be legal challenges instigated as a result of the implementation of this legislation. Depending on the findings resulting from these challenges, there may be reputational implications which ensue. 7. SOCIAL IMPLICATIONS 7.1 There are social implications associated with this paper. There are social implications in that this legislation will be a 'cultural shift' both for the officers utilising the legislation and also for the public who may be subject to it. The Act has been designed to revise the rights of arrested persons to ensure they 6

7 are dealt with fairly by the police and that all appropriate safeguards are delivered to them. 8. COMMUNITY IMPACT 8.1 There are community implications associated with this paper. The community impact is likely to be associated with the presumption of liberty, whereby persons who may previously have been held in custody, will be released, potentially with conditions, and the ongoing desire and duty by the force to protect victims and the wider public. Victims groups have been part of workshops organised by Scottish Government and supported by Police Scotland to ensure they are aware of the significant changes brought about by the Act. 9. EQUALITIES IMPLICATIONS 9.1 There are no equality implications associated with this paper. There are no perceived equalities implications as a result of this paper. The Act aims to protect all arrested persons with the delivery of specific safeguards, whilst being supported by a requirement for police actions in respect of arrest and custody to be necessary and proportionate to the individual circumstances. 10. ENVIRONMENT IMPLICATIONS 10.1 There are no environmental implications associated with this paper. RECOMMENDATIONS Members are requested to: Note the information contained within this report. 7